作为第四规则的法律方法及其功能

As the Fourth Rule of Legal Methods and its Functions

对司法而言,法律方法可视为除了法律、习惯和法学学理之外,法官进行司法裁判时所运用的"第四规则",也是法官在司法中保守法律宗旨和规定,并同时有所作为的基本工具依赖。作为"第四规则"的法律方法,在司法中对法律和法治发挥着四种功能:即对法律和法治的守成功能;对法律和法治的外溢(烁)功能;对法律和法治的内卷功能以及对法律和法治的补漏功能。这些功能,有些籍由所有的法律方法获得,如守成功能;而有些籍由特定的或部分的法律方法获得。

Legal methods could be considered the fourth rule which being used by judge in the judicial referee in addition to the law, custom and law theories for justice, and is judiciary legal principle and rules in the judicial conservative and at the same time as the basic tools of dependence. As ＂the fourth rule＂ , legal methods have four functions to the law and the rule of law in judicial play： the conformity function to the law and the rule of law; the spillover function to the law and the rule of law; the involute function to the law and the rule of law and the leak- proof function to the law and the rule of law. Some of those features, are inspired by all legal methods, such as the conformity function; And some by a particular method.